Trevor Anthony Antoine (Administrator of the estate of Joseph Antoine deceased) v Barclays Bank Plc
| Jurisdiction | England & Wales |
| Judge | Miss Joanna Smith |
| Judgment Date | 02 March 2018 |
| Neutral Citation | [2018] EWHC 395 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: HC-2016-002311 HC-06C04188 |
| Date | 02 March 2018 |
[2018] EWHC 395 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
The High Court of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
Miss Joanna Smith QC sitting as a Deputy Judge of the High Court
Claim No: HC-2016-002311 HC-06C04188
Mr Umezuruike (instructed by Riverbrooke Solicitors) for Mr Antoine
Mr Serugo-Lugo (instructed by Montas Solicitors) for Mrs Taylor
Mr Althaus (instructed by TLT LLP) for Barclays Bank Plc
Ms Yates (instructed by the Government Legal Department) for the Chief Land Registrar
Hearing dates: 20–22 February 2018
Pursuant to CPR PD 39A Para 6.1, I direct that no official shorthand note shall be taken of the judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case involves the trial of two separate actions which have been directed to be heard on the same occasion by Order of the Court.
The first action in time (HC-06C04188) (“ the 2006 Claim”) dates back to 2006 and concerns a dispute between Mrs Athena Taylor (“ Mrs Taylor”) as Personal Representative of her deceased husband, Mr George Taylor (“ Mr Taylor”) and Mr Trevor Antoine (“ Mr Antoine”), as Administrator of the estate of his late father, Mr Antoine Joseph, also known as Joseph Antoine (“ Mr Joseph”). Mr Joseph died on 21 February 1996. Administration of his estate was granted to Mr Antoine on 14 August 1996.
The 2006 Claim involved a claim for relief by Mr Taylor in respect of a property at 14 Mirabel Road, London SW6 7EH (“ the Property”) which he said was used as the security for a loan of £11,000 provided by Mr Taylor to Mr Joseph in 1987 (“ the 1987 Transaction”). He relied on three documents as evidencing the 1987 Transaction (“ the Contested Documents”) and, amongst other things, sought by way of relief the transfer to him of the leasehold and freehold interests in the Property (which were registered in Mr Joseph's name), alternatively the sum of £11,000.
On 12 July 2007, Mr Taylor obtained an order from Master Moncaster in Mr Antoine's absence (“ the July 2007 Order”) to the effect that in default of payment of what was referred to as “the Mortgage Debt” and absent notice of intention to redeem the mortgage, Mr Taylor would be absolutely entitled to all the estate and the interest of Mr Joseph in the freehold of the Property and to have transfer thereof. In the event of default by an identified date, it was ordered that Mr Taylor be registered as the proprietor of the freehold in the Property and that the leasehold would vest in Mr Taylor.
Mr Taylor received no payment and no notice of intention to redeem the mortgage by the default date and title to the Property vested in him pursuant to the July 2007 Order. HM Land Registry (“ HMLR”), acting on the July 2007 Order, then registered Mr Taylor as the proprietor of the Property.
In early 2008, Mr Taylor obtained a loan by way of legal mortgage from Woolwich Mortgages (by then a part or a subsidiary of Barclays Bank) (“ Barclays”) in the sum of £80,000 which was secured on the Property by way of a legal charge dated 26 February 2008 (“ the Legal Charge”). The Legal Charge was registered at HMLR.
In 2008, Mr Antoine discovered that Mr Taylor was carrying out renovations at the Property and applied to set aside the July 2007 Order on the grounds that it was obtained by fraud. In particular, Mr Antoine asserted that the Contested Documents were all forgeries and that his father's signature on two of the three Contested Documents was not genuine.
By an Order dated 10 July 2008 (“ the July 2008 Order”), Master Moncaster ordered that the 2006 Claim should continue against Mr Antoine as personal representative of Mr Joseph. He set aside the July 2007 Order albeit without prejudice to the rights of Barclays and their registered Legal Charge over the Property. HMLR, acting on the July 2008 Order, reinstated Mr Antoine as Administrator of his father's estate, as the proprietor of the Property.
Some further steps were taken in the 2006 Claim, as more particularly set out below, but it was ultimately not pursued beyond the receipt of a report on the signatures on the Contested Documents from a jointly instructed handwriting expert (Dr Audrey Giles) dated 26 March 2009.
In the second action in time (HC-0002311) (“ the 2016 Claim”), originally commenced only against Barclays and the Chief Land Registrar (“ the Registrar”) as Defendants, Mr Antoine seeks a declaration that the two Contested Documents which purport to have been signed by Mr Joseph are null and void and of no legal effect. Further, he seeks an order pursuant to paragraph 2(1)(a) of Schedule 4 of the Land Registration Act 2002 (“ the LRA 2002”) that the register be altered by the deletion of the Legal Charge created by Mr Taylor in favour of Barclays and an order removing from the register a Unilateral Notice in respect of a pending land action that was registered in favour of Mr Taylor on 19 March 2009 in respect of the Property.
Barclays and the Registrar do not dispute that the Contested Documents are forgeries but dispute the claim for an order altering the register on grounds of mistake. They both maintain, for reasons I shall return to later, that there is no proper basis for the register to be altered so as to delete the Legal Charge. Mrs Taylor, later joined as third Defendant in the 2016 Claim, denies that the Contested Documents are forgeries and claims damages which she says she has suffered, as Mr Taylor's Personal Representative, by reason of this false claim.
On the first morning of the trial, Mr Antoine made an application to amend his Reply to Barclays' Amended Defence in the 2016 Claim which I permitted in part and shall return to in due course. He also made an application to extend time for service of a Reply to the Registrar's Amended Defence in which he pleaded a new case to the effect that the Registrar ought to have entered an observation in the register to the effect that Mr Taylor was registered as the proprietor of the Property as the result of the July 2007 Order (which had been made in the absence of Mr Joseph) and that if this had been done, Barclays would have been alerted to the fact that the July 2007 Order might be susceptible to challenge. This is said to support the argument that the registration of the Legal Charge “ on the basis of the suggested defective registration of George Taylor as a proprietor of the Property, was a mistake”.
Ms Yates, acting on behalf of the Registrar, invited me to take a pragmatic approach to this application. Although she maintains that the new case has no prospect of success, she was not prejudiced in dealing with it and proposed that I deal with it de bene esse, which I agreed to do. I return to it later in this Judgment.
The Issues
At the heart of this case lies an important point of principle as to whether a court order said to have been obtained by reference to forged documents and given effect to by an entry on the register at HMLR results in a “mistake” for the purposes of the Land Registration Act 2002 (“ the LRA”) such that the Court has power to alter the register for the purpose of correcting that mistake.
The parties are agreed that the following issues fall to be determined at trial:
Issues Common to both the 2006 and 2016 Claims:
16.1 Were the Contested Documents forgeries?
Issues particular to the 2006 Claim (all of which, apart from the Issue at 17.3, assume that the Contested Documents were forgeries):
17.1 Should Mrs Taylor's claim be dismissed in its entirety, or should she be granted relief in the form of either:
17.1.1 Payment of money by Mr Antoine to reflect unjust enrichment to him arising from the enhancement of the value of the Property resulting from renovation carried o ut by Mr Taylor (and if so, how much), and/or
17.1.2 Repayment to her from Mr Antoine of the cost of renovating the Property, including the interest on the loan from Barclays to Mr Taylor (and if so, how much)?
17.2 Should Mr Antoine be entitled to compensation from Mrs Taylor:
17.2.1 For the fact that a legal charge was placed on the Property in favour of Barclays (and if so, how much); and/or
17.2.2 For use and occupation of the Property (and if so, how much)? In his closing submissions, Mr Umezuruike, acting on behalf of Mr Antoine, in fact abandoned this claim in circumstances where Mr Taylor's estate was worth nothing and it was accepted that Mr Antoine had no prospect of making any recovery. He invited me to make no order on the claim, which I shall do.
17.3 If the Contested Documents were genuine, should there be an order for foreclosure in favour of Mrs Taylor, or should Mr Antoine be allowed to exercise his equitable right of redemption (and if so, on what terms)?
Issues particular to the 2016 Claim (all of, which apart from the issue at 18.5, assume that the Contested Documents were forgeries)
18.1 Was it a “mistake” for the purpose of the LRA Sch. 4 para 2(a) for the Registrar to have entered Mr Taylor as the Registered Proprietor upon service of the July 2007 Order on the Registrar:
18.1.1 At all, because the July 2007 Order was made on the basis of forged documents, or
18.1.2 Without an observation on the register that the entry was made pursuant to the July 2007 Order?
18.2 Was it a “mistake” for the purposes of the LRA Sch. 4...
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Trevor Anthony Antoine (Administrator of the Estate for Joseph Antoine, Deceased) v Barclays Bank UK Plc
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